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17. It is contended that in any case, BALCO (supra) was to apply prospectively and would not apply to pre-BALCO arbitration agreements. The law before BALCO (supra), as laid down in the decision of this court in G.E. Countrywide Consumer Financial Services Ltd. v Surjit Singh Bhatia, (2006) 129 DLT 393, and as impliedly also held by the Supreme Court in Food Corporation of India v. Evdomen Corporation, (1999) 2 SCC 446, was that under Section 2(1)(e) of the Act, the only courts which would have jurisdiction would be within whose jurisdiction the cause of action arose. Reliance is specifically placed on the following passage from G.E. Countrywide (supra):

27. It is contended that this position also emerges from BALCO (supra), which was further interpreted in Datawind (supra). On the issue that BALCO (supra) laid down the law only with prospective effect, it is contended that the prospective effect of BALCO (supra) was only with respect to the holding that Part-I of the Arbitration Act would not apply to international arbitrations. On the interpretation of Section 2(1)(e) of the Arbitration Act, the holding in BALCO (supra) was merely declaratory and by necessary implication, applied retrospectively as well. Reliance is placed on the decision of the Bombay High Court in Konkola Copper Mines v. Stewarts and Lloyds of India Limited, 2013 (4) ArbLR 19 (Bom).

41. To adjudicate this question, the starting point has to be the decision of the Supreme Court in BALCO (supra) with respect to its interpretation of Section 2(1)(e) of the Arbitration Act. In paragraph 96 of BALCO (supra), the Court noted:

"We are of the opinion, the term "subject matter of the arbitration"

cannot be confused with "subject matter of the suit". The term "subject matter" in Section 2(1) (e) is confined to Part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identify the courts having supervisory control over the arbitration proceedings. Hence, it refers to a court which would essentially be a court of the seat of the arbitration process. In our opinion, the provision in Section 2(1)(e) has to be construed keeping in view the provisions in Section 20 which give recognition to party autonomy. Accepting the narrow construction as projected by the Learned Counsel for the Appellants would, in fact, render Section 20 nugatory. In our view, the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi, (Delhi having been chosen as a neutral place as between a party from Mumbai and the other from Kolkata) and the tribunal sitting in Delhi passes an interim order Under Section 17 of the Arbitration Act, 1996, the appeal against such an interim order under Section 37 must lie to the Courts of Delhi being the Courts having supervisory jurisdiction over the arbitration proceedings and the tribunal. This would be irrespective of the fact that the obligations to be performed under the contract were to be performed either at Mumbai or at Kolkata, and only arbitration is to take place in Delhi. In such circumstances, both the Courts would have jurisdiction, i.e., the Court within whose jurisdiction the subject matter of the suit is situated and the courts within the jurisdiction of which the dispute resolution, i.e., arbitration is located."

42. Antrix contends that this holding of BALCO (supra), would apply only prospectively, as declared by the Court itself in paragraph 200 of its decision. Since the present agreement between the parties was pre-BALCO, therefore the law declared by the Court in paragraph 96 would not apply to this agreement between the parties. It is contended that pre-BALCO, the courts at the seat of arbitration were not considered as falling within the definition of Section 2(1)(e) of the Act, as interpreted by this Court in G.E. Countrywide (supra). Therefore, this Court, as the court at the seat would not have jurisdiction at all, since the agreement was pre- BALCO. It has to be however noted that through paragraph 200 of BALCO (supra), the Court did not give retrospective effect to each aspect of the decision, but only to its decision that Part I of the Arbitration Act would only apply to domestic arbitrations. This is evident from a combined reading of paragraphs 199 and 200 of the decision: